Permission for Divorce and the Catholic Lawyer’s Dilemma

We live in an age of demagoguery, where would-be petty tyrants grasp at power from behind the stalking horses of “oppressed” or “powerless” surrogates. We must “help the kids” or “save the planet” or do something-or-other for the peripheral groups of people who live at the margins of society. (Or is that the marginalized groups of people who live at the peripheries of society? I forget.) The trend is rampant in the secular world and fast becoming entrenched in the ecclesiastical one. We’ve forgotten that at the heart of the Catholic social teaching is the “common good.” That means we should work for justice and fairness, taking into account the needs of everyone.

If you want to scandalize the “preferential option” social justice warrior crowd, send them to Exodus 23:3 (“Neither shalt thou favor a poor man in judgment.”).

The myopia of focusing on a narrow segment of society (or the Catholic faithful) most oftentimes produces decisions bad for the welfare of the whole. Take for instance a recent online debate in Catholic circles. A serious question has emerged as to whether Catholics must seek permission from their bishops before approaching civil courts to obtain a divorce. The impetus was a brochure written by Bai Macfarlane of Mary’s Advocates – a Catholic group dedicated to reducing unilateral no-fault divorce in the United States. Macfarlane’s brochure took the position that Church law requires Catholics in the United States to get approval from their local ordinary before filing for divorce. She approached her local ordinary, Bishop Daniel Thomas, for permission to publish the brochure. Permission was denied, as Bishop Thomas disagreed that Macfarlane’s statement was a correct exposition of canon law. Macfarlane, who is not a canon lawyer, disagreed, and on May 13, 2017, Mary’s Advocates filed a recourse to the Congregation of Education to resolve the dispute.

The dispute drew the attention of Dr. Edward Peters of the canon law blog “In the Light of the Law.” Peters offered a scholarly reply, taking the position that Macfarlane is incorrect. Peters, in part, offered the opinion of “renowned Roman canonist Felix Cappello,” who “advised priests against requiring Catholics unaware of the canonical separation requirements (which would have been most Catholics, then as now) to undertake a formal canonical process in regard to discontinuing conjugal life” – in other words, the tried and true avoidance mechanism of “don’t ask, don’t tell.”

While it would be tempting to dismiss Macfarlane as a dilettante lost in the thickets of canon law, at least one formally trained, practicing canon lawyer, Fr. Dean Perri, is apparently supportive of her interpretation. Moreover, Fr. Perri raised an important principle: marriage is a public good that requires a public forum.

Because I am not a canon lawyer, I can’t opine on whether Macfarlane is correct or not. But because I am a civil lawyer, I can opine as to why the recognition of marriage as a public good is paramount to understanding the broad spiritual consequences in play.

The position of the “renowned Roman canonist” arguably promotes some of the favorite vices of the modern-day Church: sloth, cowardice, and pride. Can anyone argue that it’s easier for the churchmen if the sheep remain blind? Imagine the boat-rocking you’d create by telling couples that their marriage is not their exclusive, personal plaything. They might not like that. Even worse, they may not listen to you after you do inform them of the rules. And sheep who don’t listen to the shepherd can hurt the pride of a shepherd who has become enamored of his own authority.

Instead, the path of least resistance for the churchmen is to let their charges run off to divorce court while they bemoan Catholic couples’ lack of a true understanding of the sacrament of marriage (even though they won’t tell couples the hard truths) and then come up with a “pastoral” solution (like Amoris Laetitia) to ostensibly “help the children” who have been damaged in the fallout. Under this model, marriage has been reduced to pure family business (or the “internal forum”) and misses the essential “common good” implications.

Here’s one implication that strikes close to home for me as a lawyer:

In most instances, people will retain a lawyer to assist in a divorce. If that lawyer is a Catholic, there are serious moral implications to his assisting in the civil divorce proceedings. While there are gray areas, it is likely accurate to say that when a lawyer represents a client in a civil divorce of a sacramental marriage where the express object of the client is to “remarry” another, that lawyer’s cooperation results in his or her being guilty of a mortal sin. The spectrum of scenarios in a divorce of a non-Catholic couple also presents a host of moral pitfalls for the lawyer, particularly if the marriage is valid even though not sacramental.

Contrary to popular humor, lawyers have souls, and those souls are precious to God. Most Americans have been poorly catechized over the past 50 years, and lawyers are no exception. The practice of law poses a daily moral hazard, and the Church has done little to educate its legal practitioners about their responsibilities as Catholic lawyers. How many unthinkingly make their living from repeatedly putting asunder what God has joined – essentially functioning as matrimonial abortionists – without their pastors and bishops ever warning them?

Despite the prescriptions of “renowned Roman canonists,” there is a wider issue. My brothers and sisters in the law deserve to have firm guidance on how their law practices may be affecting their souls. Don’t Catholic lawyers have the right to see canon law enforced and the local bishop giving or withholding approbation of civil divorce proceedings, so they can know whether it is morally safe for them to assist a potential client?

I have no idea how Rome will rule on this issue. However, I fear that the truly public dimension of marriage and divorce will get left out of the reasoning. This is about not just a man and a woman, or even a family. This is about how divorce affects society, including the role that the men and women of the learned profession of the law are asked to play in a public matter. The Pharisees here are not the “doctors of the law,” but those who refuse to lift a finger to assist in the moral burdens that American Catholic lawyers face every day.